The Covid-19 Pandemic has changed the dynamics of the world. As people are increasingly being confined to the safety of their homes, there are certain professionals who have had to step up to the challenge. One such community is that of medical professionals. Ever since the Covid-19 pandemic hit, doctors around the world have had to work round the clock. This is especially true for a country like India where healthcare facilities are less developed in comparison to other countries. While India achieved the WHO recommended doctor-patient ratio in 2017, the 1.34 doctor for 1,000 Indians ratio is still on the lower end of the spectrum. As a result, the healthcare facilities in the country have reached a breaking point, especially during the second wave of the Pandemic where record 4 lakh plus cases were being consistently reported at the peak. With rampant shortage in medical facilities and medicines, the mortality rate also shot up which caused the public anger to spill over and incidents of widespread violence against medical professionals also came to the fore.
There are various regulations and legislations that lay down the responsibilities of the healthcare workers towards their patients. These include the Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002 and even the recently amended Consumer Protection Act, 2019. The former lays down under various sections the duties of the medical professionals to provide medical treatment to the sick, to not arbitrarily refuse treatment and even create awareness among the members of the society regarding issues of public health. While these regulations illustrate the responsibilities of the medical professionals, there are not enough safeguards to protect them in situations of violence by patients, their families or the society at large.
Though violence against medical professionals isn’t uncommon, it has garnered more media attention in light of the current situation. The governments since long have not promulgated any enactment to offer protection to this group. However, given the extraordinary health emergency that the country faces, the archaic Epidemic Diseases Act, 1897 has been employed by making certain amendments via the Epidemic Diseases (Amendment) Act, 2020, to give a certain level of protection to the medical fraternity.
Section 3[1A(a)] of the Act defines what constitutes an “Act of violence” against a healthcare service professional. This includes harassment which may impact the living or working conditions of such healthcare service personnel and preventing him from discharging his duties. It also includes any harm, injury, hurt, intimidation or danger to the life of such healthcare service personnel, either within the premises of a clinical establishment or otherwise. Any obstruction or hindrance to such healthcare service personnel in the discharge of his duties, either within the premises of a clinical establishment or otherwise also amounts to an act of violence. And any loss or damage to any property or documents in the custody of, or in relation to, such healthcare service personnel is also covered under the ambit of this definition.
Section 6 of the Act also lays down the punishment for such acts of violence. It reads that “whoever commits or abets the commission of an act of violence against a healthcare service personnel; or abets or causes damage or loss to any property, shall be punished with imprisonment for a term which shall not be less than three months, but which may extend to five years, and with fine, which shall not be less than fifty thousand rupees, but which may extend to two lakh rupees.” In situations where the act of violence is such that it causes grievous hurt to a healthcare professional as defined in section 320 of the Indian Penal Code to such person, the punishment is “imprisonment for a term which shall not be less than six months, but which may extend to seven years and with fine, which shall not be less than one lakh rupees, but which may extend to five lakh rupees.“.
Generally speaking, the Indian Penal Code, 1860 (IPC) has various provisions, especially Sections 323, 325, 352, 506, which could be employed to deal with instances of violence. Further, the Medicare Service Persons and Medicare Service Institutions (Prevention of Violence and Damage to Property) Acts or the MSPMSI Acts has also been enacted in several states of the country. However, it has been argued by various groups including the government and medical professionals that a specific legislation is necessary to provide protection to the healthcare workers.
But the question arises, how reasonable is this immunity, insofar, to situations where there is a prima facie case of medical negligence. Further, there is a scope of this Act being arbitrary since Section 3(3) of the Act mandates that the Court shall presume the existence of a culpable mental state which is a deviation from the standard presumption of innocence, until proven guilty. What is noteworthy is that the Amendment Act is based on a parent Act which is more than two centuries old and various provisions of the Act are insufficient to address the issues of the contemporary medical professionals and patients. For instance, the Act does not provide for recourse in situations of a global pandemic. The global connectivity then and today, levels of migration, greater occupation of individuals on per capita of land are some important issues that the Act is ill equipped to deal with. It is no wonder why even the Indian Medical Association has written to the Union Home Minister underlining the need for “a uniform, effective and comprehensive law against healthcare violence“.
In light of the same, the Indian judiciary has risen to the occasion and various courts have elaborated on various factors that must be taken into consideration while deciding on such cases of violence against healthcare professionals. For instance, in the case of Abdul Naser v. State of Kerala (2016 (1) KLT 168), the High Court of Kerala has dealt comprehensively with the question of anticipatory bail to the accused in such situations. The court laid down that three factors must be considered while deciding the question of anticipatory bail. These are:
1. The nature and gravity of the injury, if any, sustained by the doctor/hospital employee.
2. The extent of damage, if any, caused to the property.
3. The circumstances under which the acts of violence were committed.
The last factor again highlights that there might be mitigating factors when it comes to incidents of violence as medical negligence in certain situations can also not be ruled out. Therefore, an Act which presumes the guilt of the accused from the outset becomes highly problematic. For instance, there have been reports of medical staff not following the safety protocols in some hospitals across the country. If such a situation leads to the death or deterioration in health of a patient, medical negligence could be established. But owing to the overwhelming pressure on the medical infrastructure of the country, a healthcare professional may misuse the immunity to shirk their responsibility. Further, instances of overcharging and even sexual assaults of Covid-19 patients are rampant which has led to an escalation in instances of violence against such professionals which makes a strong case for an urgent need in rethinking the legal immunity.
Thus, one can reasonably infer that the present legislation is ineffective in both, protecting the healthcare professionals who are working against all odds in treating the patients and also securing the right to healthcare of individuals who may be victimised because of certain individuals engaging in unfair practices. In such a situation, courts across the nation have taken this matter seriously and passed various guidelines to ensure protection to both the sections of the society.
In the case of Jerryl Banait v. Union of India (2020 SCC Online SC 357), the Supreme Court dealt with a matter wherein the doctors who had gone to screen certain patients were attacked and faced stone-pelting. The Court observed and directed: “The pandemic which is engulfing the entire country is a national calamity. In wake of calamity of such nature all citizens of the country have to act in a responsible manner to extend helping hand to the government and medical staff to perform their duties to contain and combat the COVID-19. The incidents as noted above are bound to instill a sense of insecurity in Doctors and medical staff from whom it is expected by the society that they looking to the call of their duties will protect citizenry from disease of COVID-19. It is the duty of the State and the Police Administration to provide necessary security at all places where patients who have been diagnosed coronavirus positive or who have been quarantined are housed.”
The court has made similar observations in various other cases reiterating the position that the present legislation is ineffective in addressing the concerns of all affected parties. What is needed is a balanced approach that takes into consideration all important issues and tries to address them comprehensively at legal, sociological and academic levels. Protecting the doctors and the healthcare workers is not the responsibility of the governments alone but also of the hospital administrations where they work. For instance, the WHO along with the ILO, ICN and Public Service International, has come up with Framework Guidelines to address the issues of workplace violence in the healthcare sector. It lays down that it is the responsibility of hospitals and other healthcare institutions that their employees work in a safe environment. To ensure this, the employers must regularly undertake threat assessment, eliminate all possible risks by developing policies and programs that ensure health and safety of such workers. Various contingency plans should also be put into place in case of any incident of violence along with proper reporting mechanisms and counselling services.
Since the violence against health professionals is a wider public issue, an attempt must also be made to create awareness amongst the public at large regarding the various challenges the medical fraternity faces, especially during these unprecedented times.
In many situations, it was observed that the unavailability of medical infrastructure was the cause behind ineffective medical care provided to a patient. The lack of oxygen support, unavailability of hospital beds or medicines is not a deficiency in service by a professional but rather an implication of the underdeveloped medical infrastructure of the country. Violence against the medical professionals of the country, as a result, will bring down the morale of these “Corona warriors” and may even discourage young medical professionals from joining this noble profession. At this juncture, it is important to mention that it is the duty of the government to ensure that medical supplies are readily available at this critical moment in time. This will help ensure adequate medical care to the patients and can also significantly reduce cases of violence against the members of the medical fraternity.
Thus, one can see that there are various reasons for violence against healthcare professionals including lack of medical facilities, medical negligence and sometimes, even the inability of the general public in understanding the challenges being faced by them. While there are various Regulations that elaborate on the responsibilities of the doctors and other medical staff, the legislations relating to safeguards of these professionals are highly ineffective as they rely on a two hundred years old legislation as a guiding light. This, combined with the general ignorance and apathy towards the medical staff of the country has led to instances where the professionals have been beaten up, or worse, killed. The mounting pressure on the medical professionals coupled with inadequate infrastructure and looming threat of violence can spell doom in the nation’s fight against the Covid-19 pandemic. What is needed is a zero tolerance approach towards this barbarism while ensuring adequate healthcare facilities and treatment is available to every citizen of this country which can be achieved only with the active participation of all the stakeholders of the nation and by framing new legislations that are adept to deal with the issues faced by medical professionals in the contemporary world.
© Chawla Publications (P) Ltd.
Coronavirus disease 2019 (COVID-19) is defined as illness caused by a novel coronavirus now called severe acute respiratory syndrome coronavirus 2, which was first identified amid an outbreak of respiratory illness cases in Wuhan City, Hubei Province, China. It was initially reported to the WHO on December 31, 2019. On January 30, 2020, the WHO declares the COVID-19 outbreak a global health emergency. On March 11, 2020, the WHO declares COVID-19 a global pandemic, its first such designation since declaring H1N1 influenza a pandemic in 2009.
The WHO leads global efforts on creating safer practices and preventing public health disasters throughout the world and to fulfil the same objectives WHO introduced International Health Regulations. These were adopted in the year 2005 and were enforced in the year 2007. These regulations are legally binding agreement on all WHO members including India whereby all the member countries must make necessary measures- legislatively and institutionally to prepare for international public health risks.
COVID-19 is a problem of public health which leads to problem of public order. Now through legal point of view, the Constitution of India under Article 245 specifies basis for division of powers between the Centre and the states and under Article 246 explains distribution of law-making power between the Centre and the states. According to Seventh Schedule of the Constitution of India Public Order and Public Health comes under the State List, thereby, state governments have the authority to deal with issues relating to Public health and order but according to Entry 29 of the Concurrent List in Seventh Schedule centre has more power than states to make a law and take certain actions in preventing the spreading of infectious diseases from one state to another. Therefore, Centre has come up with national lockdown and it is implemented across the states.
National Disaster Management Act, 2005 is the key empowering provision for the lockdown to exist. The lockdown has been carried out by state governments and district authorities on the directions of the Union Ministry of Home Affairs under the said act. Under the Act, the National Disaster Management Authority (NDMA) was set up under the leadership of the Prime Minister, and the National Executive Committee (NEA) was chaired by the Home Secretary. After being satisfied that COVID-19 is a pandemic as per WHO the National Disaster Management Authority headed by Prime Minister directed the Centre and states to ensure social distancing as per section 6(2)(i) of the Act and the National Executive Committee headed by the Home Secretary directed the lockdown orders with specific details as per section 10(2)(l) of the Act.
On March 24, 2020, the NDMA and NEA issued orders directing the Union Ministries, State governments and authorities to take effective measures to prevent the spread of COVID-19. The invoking of National Disaster Management Act has allowed the Union government to control the pandemic and to communicate seamlessly with the States. Government of India is taking all necessary steps to ensure that we are prepared well to face the challenge and threat posed by the growing pandemic of COVID-19.
• In our country, disobedience to the rules set out by the government to control COVID-19 is punishable with Section 188 of the Indian Penal Code,1860. Under this section, whoever, knowing that, by an order promulgated by a public servant, disobeys the order, and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with an imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
• Failure to take requisite precautions despite being aware of the possibility of the spread of such infection or disease is punishable under Sections 269 and 270 of the IPC.
• Under Section 269, whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description up to six months or fine or with both fine and imprisonment. Under Section 270, whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
• Disobedience to quarantine rule is punishable under Section 271 of the IPC with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
Tough times never last, but tough people do. We should strictly follow the guidelines laid down by the government. The disease spreads primarily from person to person through small droplets from the nose or mouth, which are expelled when a person with COVID-19 coughs, sneezes, or speaks. People can catch Covid-19 if they breathe in these droplets from a person infected with the virus. This is why it is important to stay at least 1 meter away from others. These droplets can land on objects and surfaces around the person such as tables, doorknobs and handrails. This is why it is important to wash your hands regularly with soap and water or clean with alcohol-based hand rub. We all need to understand the repercussion of not following the rules laid down by the government and the catastrophic effect on the whole country if we disregard the precautionary measures mandated by the State.
© Chawla Publications (P) Ltd.
Introduction
Coronavirus has created Pandemic like situation in whole of the world. This Pandemic again strike India after 102 years. In 1918, the Spanish Flu strike Europe and other parts of world including India as Pandemic. India was most affected by this disease. This disease broke out mostly in Bombay that’s why in India it is Known as `Bombay Fever’. It took 3 years for India to be in normal situation. Around 13 million people in India lost their lives.
Coronavirus is a clubbed group of viruses that are mainly found in human beings as well as in animals. Coronavirus is also known as Covid-19 because this disease is formed in the year 2019. This disease is that type of disease which may communicable to another person. Medical studies and research have shown that one coronavirus positive person can make positive to more than one hundred persons. The vaccine of this disease is yet to come. This disease came first in China in November 2019 and subsequently transmitted to other countries of Asia as well as the whole world. Today, in every part of world where this disease is transmitted is suffering from huge setback of because of current increasing number of deaths and sufferings among people. Each and every country is forced to lockdown its daily activities because of transmission of this disease from one person to another. The same above sufferings among the people are there in India but in a controlled manner. In India number of positive Covid-19 cases are increasing day by day. The reason behind increasing of Covid-19 patients in India is increasing of daily tests to 1 Lakh approx. From past few days of June, 2020, India has witnessed biggest spike in positive cases to 9,000 approx. in one day with increasing number of deaths due to Coronavirus. At present India has more than 2,20,000 positive cases with more than 1,10,000 active cases and more than 6100 deaths reported in India[1*]. Central Government of India has launched various measures to control this Epidemic i.e. one of the foremost and effective measure have been launched by our Worthy Government is `Social Distancing’. This measure has been effective as of now and lockdowns in various parts of India to reduce the impact of this deadly disease. India is under complete lockdown from 25th of March,2020 which is Phase-1 till 14th of April,2020. On 15th April, 2020 our Prime Minister Sh. Narendra Modi announced another lockdown of 19 days till 3rd May,2020. Again, on 3rd May,2020, Prime Minister Modi Ji announced lockdown till 17th May ,2020 with some ease in relaxations by diving into different zones. Now recently again lockdown has been extended from 17th April,2020 till 31 May,2020. In Lockdown Phase-4 there shall be complete lockdown from 7pm to 7am every day and from 8am to 6pm there is now ease in restrictions for opening of shops and businesses as per the guidelines of the respective states. On 31st May,2020 Government has the Lockdown has been extended to 30th June,2020 with some more relaxations like opening of Religious Places, Restaurants etc from 8th June,2020. Even in the containment zones essential activities are allowed to operate. Our country is going step by step of easing the restrictions. That’s why in India, Coronavirus is in a controlled manner as comparatively to different countries like USA, UK, Italy, Spain etc have been worst affected in terms of deaths reported due to this Epidemic.
[1* www.covid19india.org.]
Decongestion of Prisons Amid Covid-19
During the Lockdown various debates have become the hot topics of Coronavirus that how the economy will gain the momentum Post-lockdown and the losses incurred by the government and people during the lockdown. One of the foremost questions came to be developed is the working of courts during the Covid-19. As the pendency of the cases is increasing day by day and certain important matters which needs to be listed on urgent basis and required the urgent decision that how will it work if the legal systems of our country will be closed down by making the urgent cases on stand still. Also, the questions on how the Public Interest Litigations which redefines the rights of individuals and curbs the arbitrariness of any action whether done by executive or any other agency would be filed if the courts are closed down. These above topics became the main themes not only in India but in other parts of the country where the lockdown continues due to Covid-19 like situation. In fact, all the answers to these above questions have been given affirmatively by Hon’ble Supreme Court of India on 18th of March 2020 by taking Suo-Motu Petitions In Re: Contagion of Covid-19 Virus in Prisons[2*] whereby Hon’ble Bench has directed the working of Supreme Court that it will work on only Extreme Urgent Matters as well as will entertain the Public Interest Litigations also Hon’ble Bench of Supreme Court directed its staff and litigants to restrict to coming to court and `Work from Home’ method become suitable to restrict to coming to court. Also, Hon’ble Bench of Supreme Court of India directed all the High Courts of India to direct its staff and litigants to restrict physically coming to the courts and `Work from Home’ method suitable to restrict physically coming to court. It also directed to restrict the taking up of matters involving of Extreme Urgency and the listing of Public Interest Litigation petitions in the High Courts and its Subordinate courts.
[2* Suo-Motu Petition (C) No.1/2020, Supreme Court of India, www.sci.com.]
Again, on 23rd March 2020 Supreme Court of India taken up the Suo-Motu petition Re: Contagion of Covid-19 Virus in Prisons[3*] whereby it directed the all the High Courts and Subordinate Courts to it to enable the feature of Video Conferencing for hearing the petition of urgency as well as for hearing of Public Interest Litigation petitions. It also directed to reduce the overcrowding of prisons in India by following social distancing scheme as it has been thought that prisons are more prone to Coronavirus due to large number of prisoners lodged in the prisons. Hon’ble Bench of Supreme Court of India made the categories of prisoners to be released from the prison on parole basis during the Covid-19 period. Hon’ble Bench specifies that the prisoner whose sentence is not more than 5 years or 7 years in case of senior citizen and the crimes done by him/her does not fall under NDPS act in large quantity, Rape, POSCO, Acid Attack cases, UAV act cases etc will not be considered for parole for Covid-19 period. Hon’ble Bench of Supreme Court also directed all the High Courts of India to make High-Powered Committee to specify the categories of prisoners to be released on parole during Covid-19 period. Subsequently all the High Courts of India have made High-Powered Committee for the release of categories of prisoners on temporary bail during Covid-19. Each High Court in India is under the discretion given by Hon’ble Supreme Court of India that which category of prisoner is to be released on parole and which are to be left out.
[3* Ibid 2]
Each High Court of State has made its High-Powered Committee on the directions of Hon’ble Supreme Court of India in Re: Contagion of Covid-19 Virus in Prisons[4*] to determine the release the categories of prisoners to decongest the jails in India. On the directions of High-Powered Committee of each High Court, the Magistrates of each district started making the list of prisoners to be release on temporary bail and jail superintendents started releasing prisoners. On 7th April Hon’ble Bench of Supreme Court of India responding to Public Interest Litigation in Vishvendra Tomar v. Union of India and others[5*] said that it will not direct the High-Powered Committee of High Courts to consider the release the prisoners accused in special offences like economic offence. But Hon’ble Bench gave the liberty to Petitioner to give representation to Government and High-Powered Committee to release economic offence category prisoners. After the decision of above Public Interest Litigation, High Court of Delhi and its High-Powered Committee gave further relaxation to the categories of prisoners to be released on temporary bail amid Covid-19. Recently High Court of Bombay and its High-Powered Committee decided to release half the population of prisoners on temporary bail during Covid-19. “Apart from this High-Powered Committee of Punjab headed by Hon’ble Mr Justice R.K Jain has decided to extend the temporary bail prisoners to another six-weeks as this pandemic is still going on and it is not safe for the prisoners to return to jail.”[5*] In May, 2020, Punjab and Haryana High Court increased its number of Hon’ble Benches to hear all kinds of urgent matters on Video Conferencing feature with 2 Division Benches and 11 Single Benches are working on regular days.
[4* Ibid 3.]
[5* Diary No.10829 of 2020,www.sci.com.]
[6* Covid-19: Punjab Extends Parole of Convicts to Decongest Jails, www.timesofindia.com]
Conclusion
In the end I would like to express my view point and suggestion that Hon’ble Supreme Court of India and High-Powered Committees made by the respective state High Courts for temporary release of prisoners amid Covid-19, have taken a great step to decongest the prisons. I would like to give suggestion to jail authorities in India that certain categories of prisoners which could not be released on temporary bail during this pandemic to ensure them a healthy environment in prison so that they can be protected from Covid-19. Apart from this, during the lockdown amid Covid-19 situation, every sector in India like aviation sector, industrial sector or any other sector, suffered from great set- back and most affected by this pandemic are the daily wage workers, as they are not getting work to perform, subsequently they are not being paid. That’s why Government of India has announced a huge package of Rs 20 Lakh Crore to help small industries, needy people etc. Recently Prime Minister Cares Fund has released Rs 3100 crore to help daily wage workers who are going to their home states by special Shramik trains launched by Central Government.
© Chawla Publications (P) Ltd.
]]>Ever since the World Health Organisation (WHO) declared COVID-19 as pandemic, it has disrupted not only our primordial socio-legal framework but has also led to severe global economic disturbance. In other words, the analysis of law is directly analogous to the prevailing socio-economic situation. The COVID-19 pandemic has largely impacted Socio-economics, Culture, Politics, Education, Environment and Climate. Now, the important question arises as to how international and domestic law responds to this prevailing social catastrophe which has affected nearly 200 countries. The answer to this lies somewhat in the historically evolved trentino to quarantine law which is known to have been practiced since biblical times and is being applied till date; though not out of context to quote that the “quarantine era has begun”.
A protective sequestration or sometimes referred to as reverse cordon sanitaire (French for sanitary cordon) is a public health social distancing measure or restriction of movement of people in a defined geographical area, taken to protect the healthy population from getting infected by an epidemic or pandemic before the infection reaches that population. Certainly being de-rigueur, new ways of conducting court proceedings have emerged which are safer and inexpensive and are evolving as Socio-legal distancing. However, this socio-legal distancing has presented major disruptions for global legal market in as much as some have direct consequences on contractual obligations under specific agreements while others have universal overtones.
The United States became the third largest hotspot after China and Italy in number of COVID-19 cases. New York being the epi-central hotspot of North America. Thousands of people have been subjected to legally enforceable quarantines or are in “self-quarantine.” The US government has banned entry of foreign nationals travelling from China, Iran, and most of Europe and is screening passengers returning from heavily affected countries. Each country have had its own laws on isolation and quarantine orders but traditionally quarantine has been practiced more in the United States. Courts have upheld quarantine orders in order to protect public health. Apart, the Unites States Congress enacted the Families First Coronavirus Response Act, 2020 which “provides paid leave, establishes free coronavirus testing, supports strong unemployment benefits, expands food assistance for vulnerable children and families, protects front-line health workers and further provides for additional funding to states to countenance and alleviate the ongoing economic consequences wrecked by the pandemic, among other provisions.
The United Kingdom has enacted a law namely Coronavirus Act, 2020 distinctly for coronavirus and incidental purposes. The Act enables the government to have the discretionary power to limit or suspend public gatherings, to detain individuals suspected to be infected by COVID-19 and to intervene or relax regulations in a range of sectors so as to limit transmission of the disease, ease the burden on public health services, to assist healthcare workers and the economically affected. The law also provides measures to deal with economic effects of the pandemic. It enables the government with the power to suspend the eviction of tenants, protect emergency workers from getting unemployed and provides special insurance cover for healthcare workers. However, the effects of this Act have been widely debated as it imposes reasonable restrictions on civil liberties which could remain beyond the end of pandemic.
France enacted Law No.2020-290 declaring itself to be in a State of health emergency and as such has taken Emergency measures to monitor the health situation and to try to prevent lay-offs and business bankruptcies; in addition to the rapid spread of the COVID-19. Apart, this law empowered the French government to legislate by means of Orders in its territories. As such, the government adopted two Orders; firstly to preserve the rights of litigants and secondly adapt legal proceedings to the requirements of fighting the spread of COVID-19. Order No.2020-306 of 25th March 2020 deals with deadlines and measures which have expired or were due to expire between 12th March 2020 till the expiry of a period of one month after the end of the state of health emergency. Therefore, the litigant will be able to act within this period without his action being declared time barred. Order No.2020-304 dated 25th March 2020 aims to adopt rules of procedure for curtailing the spread of COVID-19 and furthermore includes a set of rules dealing with the conditions of hearings before civil and commercial courts.
Germany enacted the COVID-19 Pandemic Law to extenuate the consequences of the COVID-19 pandemic in civil, criminal and insolvency law. The people will benefit in as much as; the obligation to file for insolvency has in general been suspended until 30th September 2020 with the option of an extension by the German Ministry for Justice and Consumer Protection until no later than 31st March 2021. Apart, it deals with measures regarding the execution of shareholder meetings, passing of resolutions, etc., Moratorium, Protection of tenants against eviction and Loan agreements.
Spain declared a State of Emergency by means of Royal Decree 463/2020 declaring COVID-19 as national health crisis which was further amended as Royal Decree 465/2020 and 476/2020. A series of other royal decrees were also passed relating to issues concerning social and economic impact of COVID-19 on health and social workers, food stores and food production, industry, construction, banking, media, energy, water and electricity supplies. The Royal Decree Law 8/2020 specifically addresses the challenges faced by companies who have to comply with their legal obligations under corporate and insolvency regulations.
Undoubtedly COVID-19 pandemic started from China but due to their ambitious, agile and aggressive perseverance and efforts of disease containment, they have achieved something which was considered to be impossible in public health. The first ever substantial measure was the lockdown of Wuhan city alongwith other cities. The lockdown placed over 50 million people under mandatory quarantine since January, 2020. The lockdown effectively curtailed the further spread of the disease in as much as it isolated the infected individuals from the rest of the healthy population. Infact, people from other regions also voluntarily quarantined themselves and were being continuously monitored by the government. The authorities had built dedicated hospitals in Wuhan to truncate the pandemic and health workers were deputed at the outbreak centres.
As per the report of the WHO-China Joint Mission on Coronavirus Disease (COVID-19), “upon detection of a cluster of pneumonia case of unknown aetiology in Wuhan, the CPC Central Committee and the State Council launched the national emergency response. A Central Leadership Group for Epidemic Response and the Joint Prevention and Control Mechanism of the State Council were established.” The Chinese law on Prevention and Treatment of Infectious Diseases categorises diseases into three classes A, B and C. Category A includes only two diseases namely bubonic plague (bubonic derived from an ancient greek word “boubon” meaning groin and a bubo in the groin causes swelling) and Cholera. Category B includes diseases like SARS, anthrax, AIDS, typhoid, and viral hepatitis. Category C includes diseases such as Influenza, leprosy, mumps, and schistosomiasis. However, COVID-19 was included in the category of Class B infectious diseases. The strategy to control the pandemic was divided into three stages of outbreak. Firstly, to prevent and control the source of infection, block transmission and prevent further spread, Secondly, to reduce the intensity of the epidemic and to slow down the escalation of cases and Thirdly, to reduce cluster of cases, thoroughly controlling the epidemic and striking a balance between epidemic prevention and control, sustainable economic and social development, unified command, standardized guidance and scientific evidence-based policy implementation. Thus as such the Chinese authorities launched an unprecedented effort to trace contacts of confirmed cases.
The South Korean government passed new medical laws allowing it to prosecute Coronavirus suspected people who refuse to co-operate from getting tested for COVID-19. The amended law also allows the nation to restrict entry to people confirmed or suspected to have contracted the COVID-19. Further, it authorises the government to ban export or transfer masks and other items. As and when the Korean government disseminated the message on social distancing, the people began to embrace it of their own and as such it has been effective with large scale people’s participation.
Australia enacted The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 under The Biosecurity Act, 2015 for dealing with COVID-19 pandemic. Apart, The Public Health (COVID-19 Self Isolation) Order 2020 was passed under The Public Health Act, 2010 by the government of New South Wales for protecting the health and wellbeing of the public from getting infected from COVID-19. Furthermore, The COVID-19 Legislation Amendment (Emergency Measures) Act 2020 was also enacted; specifically dealing with the working of court proceedings during pandemic. In this way the Australian government has taken measures in the form of income protection, taxation, financial assistance, personal wellbeing through work from home concept and imparting as much awareness about public health information.
India is one of the leading countries who took drastic, efficacious and constructive measures in order to curtail the outbreak of COVID-19 pandemic. A country of 1.3 billion people and a threat of widespread upsurge of the disease, the Union government immediately declared a nationwide lockdown and quarantine measures to be adopted by every citizen; failure of which may result into punitive measures. The law of the land in cases of epidemics has been the 123 years old British colonial era Act i.e. The Epidemic Diseases Act, 1897 which provides for the better prevention of the spread of dangerous epidemic disease. The Act itself empowers the Central and State government to take special measures and prescribe regulations in relation to dangerous epidemic disease. It was enacted to tackle the epidemic of bubonic plague that broke out in the then State of Bombay at that time. In view of the prevalent serious situation having engulfed the nation, a high level Group of Ministers (GOM) was constituted to review, monitor and evaluate the preparedness and measures taken regarding management of COVID-19 in the country. The Ministry of Health and Family Welfare (MoHFW) has been monitoring the steps initiated by the Union Government in order to attenuate the outbreak of the pandemic. The MoHFW engaged all States and Union Territories to invoke Section 2 of the Epidemic Disease Act, 1897, so that all the advisories issued by the MoHFW are enforced by the States and Union Territories. The Union government also invoked the provisions of The Disaster Management Act, 2005 alongwith other advisories. During the nationwide lockdown, some incidents of violence against medical and health workers were reported. Keeping in view their safety and law and order situation, the government promulgated an Ordinance to amend the Epidemic Diseases Act, 1897 in the light of the pandemic situation of COVID-19. The Ordinance is intended to ensure that during any situation akin to the current pandemic, there is “zero tolerance” to any form of violence against healthcare service personnel and damage to property.
Singapore did not invoke any emergency laws to deal with the COVID-19 outbreak. The government took initial measures under The Infectious Diseases Act (IDA) which had been previously strengthened during the global SARS (Severe Acute Respiratory Syndrome) outbreak in 2002-2003. Apart, it invoked powers under The Immigration Act, which allowed the government to deny entry to travellers from Wuhan-the original epicentre of the outbreak and progressively to travellers from other countries. The COVID-19 (Temporary Measures) Act 2020 (“CTMA”) was urgently passed by the Singapore Parliament sanctioning reliefs during COVID-19 pandemic under certain categories namely relief for inability to perform contracts, financially distressed individuals, firms and other businesses, conduct of meetings, measures for court proceedings, measures concerning remission of property tax and COVID-19 control orders. Section 34(7), CTMA specifies that breaches of control orders will be treated as offences. An article on Singapore’ Legislative Approach to COVID-19 suggested that Singapore’s response to COVID-19 pandemic was the envy of many nations. Its strategy of early testing, rapid contact tracing, isolating cases and close contacts was praised for its effectiveness.
There are plenty of legal implications arising from the pandemic such as the handling of affected employment relationships, insolvency proceedings, commercial contracts, insurance coverage of pandemic-related damages or consequences in the field of travel law. However, given the enormous volumes of business and trade which has so far been achieved, it is of highest relevance how pandemic related disruptions may affect the legal side of existing supply and production-related relationships. Keywords of most relevance in this context are the terms “Acts of God” and “Force Majeure clauses”.
The term force majeure is of French origin which means a superior or irresistible force or any unforeseeable event or circumstances which preclude someone from fulfilling a contract. Since it being a contractual term, the fundamental law of force majeure is incorporated under Section 32 and 56 of The Indian Contract Act, 1872. Traditionally, force majeure events may include an act of god or natural disasters, war or war like emergencies, labour unrest or strikes and epidemics etc. Interestingly, the scope of force majeure is restricted to something which cannot be prevented or causes you cannot prevent but considering this ongoing pandemic it is yet to be ascertained whether its gamut should be enlarged or not. A force majeure clause saves the party from performing its obligations beyond its control and as such operates as an exception to a breach of contract. The law regarding force majeure has been dealt extensively by the Hon’ble Supreme Court of India in the case of “Energy Watchdog & Others v. Central Electricity Regularity Commission & Others; (2017) 14 SCC 80.” Apart, if a contract does not include the force majeure clause, then the parties may resort to Section 56 of the Indian Contract Act, 1872 which underlines the principle of “Doctrine of frustration”.
In view of the current situation, the respective governments have taken steps to safeguard the rights and interest of parties in commercial contracts and have resorted to certain safeguards. For example, as per media reports the China Council for the Promotion of International Trade (CCPIT) issued over 1,615 Force Majeure certificates to firms in 30 sectors covering contracts worth over $15.7 billion. Thus, keeping in view the circumstances emerged due to COVID-19, global legal market has effectively included this pandemic under the force majeure clause being an evolving process under the contractual jurisprudence.
The traditional way of litigation has always been an in-person proceedings, however this pandemic has changed the course to virtual courts. Though the transition is critical for protecting public health; yet it will bring transparency and accountability in the judicial system in as much as it has flung the gates wide open for open court proceedings around the globe. The courts are exploring technological methods by setting up virtual courts to ensure that justice delivery system is not impacted and crippled by COVID-19. One of such method is virtual litigation where the proceedings of court are conducted from home court room. The system of virtual court operations is in vogue and being adopted by each and every country focused on dispensation of essential and emergency matters. The courts have shifted criminal arraignments, bail applications, orders of protection and other essential civil, criminal and family matters to a virtual environment. The courts are also hearing pending non-essential matters virtually through video or phone conferencing. The administrative and court staff are assisting judges in using the various digital platforms to conduct the hearings and access records and to do so provision for filing fresh cases is already in practice through e-filing.
The world is talking of disrupted supply chains and collapsed economic activity but what this Socio-legal distancing has achieved is worth noting. The law of Self-quarantine has effectively evolved during this ongoing pandemic and as such benefits the society at large. The global market is transforming during this pandemic as we see invocation of robust social distancing measures; and mandatory quarantines has resulted into creation of new and effective legal tools. With COVID-19 in our communities, we have witnessed effective implementation of public health laws but the sine-qua non at this time will be new laws on bio-terrorism. COVID-19 pandemic has compelled the world to re-examine the laws and regulations governing the control of contagious diseases more so from any potential biological attack. Apart, most importantly during this pandemic the world has witnessed emerging trends in work culture. The newest of these is Virtual Communication or in legal market it is termed as Virtual litigation and Virtual Courts. The occident and orient both have adopted such measures to ensure that this pandemic does not adversely impact timely delivery of justice. The Courts hold virtual courts through videoconferencing to hear urgent matters. The most important socio-legal impact of such measures is that virtual court proceedings ensures safety of litigants as well as are cost effective. These measures in quintessence justify socio-legal distancing. Furthermore, there were unexpected environmental consequences due to COVID-19 such as global reduction in economic activity, reduced industrial and transport emissions and effluents. In India, a Janta Curfew’ or Peoples Curfew was imposed and the results were similar too; following which, a significant dip in air pollution levels were witnessed across the country. Metropolitan cities like New Delhi, Bengaluru, Kolkata and Lucknow saw their average Air Quality Index (AQI) staying within two digits. Consequently, the world of public health might have termed this pandemic as a catastrophe but the world of media and environmentalists have referred to it as a beautiful fortune.
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We are not the only species surviving over the planet. There are thousands of micro species too, those could not be seen by human eyes but they do play a major role in tuning the life of other species, like us into advancements and even can subject us to immense danger. Bacteria’s, viruses, fungi’s and many more other microorganisms do exist, those though very small in size but are efficient enough to lead other organisms to a biological menace or intimidation. With the advancement of technology there emerged a new branch of studies and research in sciences i.e. Micro-biology. Louis Pasteur, the father of microbiology began working on yeast by 1855. That was the instance when these micro-organisms were used for the prosperity and as an asset for the humans. But with time the intent and adage behind the usage of such organisms, turned from gaining prosperity to losing humanity and installation of dread. Furthermore the use of these pathogens and viruses began in wars, so as to inflict maximum hardships and impairment to the adversaries of theirs. Earlier, there only the Chemical warfare’s and Nuclear warfare’s were recognized but by the time when the use of biological entities begun in the same regard, there got coined a new term at international platform i.e. Biological Warfare.
What Is Biological Warfare?
There is a distinction of miles among Chemical or Nuclear Warfare and the Biological Warfare. Still these all warfare’s are equivalently destructive to human race and other living entities too. After the era of utilizing these micro-organisms for beneficiary concerns, there began the use of such microorganisms for destruction and for making bio-warfare weapons. The scientists in order to come-up with new inventions in the field of microbiology, instead begun with the discovery of more hazardous and menace ensuing micro-entities. Bio-warfare is also recognized as “Germ Warfare”. Thus Bio-warfare refers to the use of biological toxins or agents, for the killing of humans/ animals, in order to inflict maximum damages to the rivals. Moreover in order to curb any such Bio-warfare in near future, it is generally being considered/ recognized as an “Act of War”. Use of any offensive bio-weapon is prohibited under the following laws and treaties:
1) Rule 75, Customary International Humanitarian Law
2) Also by an international treaty i.e. Customary Internal humanitarian law, vol. II.
Above-all the use of any bio-logical weapon especially in case of armed conflict is to be considered as a “War Crime”. If any nation uses bio-weapon in case of an armed conflict, in order to inflict maximum menace and threat among the rivals, that nation is considered to have committed “War Crime”. Also that particular nation is to be held as being in contravention of international laws. With the growth of terrorist groups the threat of use of biological weapons for the means of ensuing terror and menace among mob also arose.
Bio-Warfare Weapons as a Means of Terror
In juxtaposition to Chemical and the Nuclear weapons the Biological weapons are highly immune when concern is of them being detected. The Nuclear weapons could be detected by the radiations of the radioactive material therein used and by such a similar manner the Chemical weapons could also be detected. But the Biological weapons are having a strong shield of immunity that safeguards them from being detected, as both the chemical and nuclear matter used in respective weapons could be seen by naked human eyes, but these micro-organisms and their mutated forms could not be seen and sensed even. Moreover these weapons are economical and easy to access too. The biological weapons are highly cheap as it is of about 0.06%-0.07% of the total cost that’s being used for conventional weapons, thus it gets clearly explicated that these biological weapons are highly accessible to the terrorists too. Moreover generating a virus is the very same process which we accord to in making of vaccines and it’s very easy to generate a new virus by successive lab tests. Also there is a technique in prevalence that’s being used by the scientists of this age in order to deal with such micro-entities i.e. “Clustered, Regularly interspaced Short Palindromic Repeat” (CRISPR). Even scientists have explicated it as to be threat for the humanity as, this technique is very cheap and is easily accessible too. Here in this technique basically a DNA sequence is cut-off and replaced with a new sequence, that codes for particular characteristics. Thus this also leads to emergence of immense terror threat.
Historical Foot Prints of Bio-Warfare
First time the use of Chemical Weapons (in large scale) and Biological Weapons (in short scale) got registered in at the time of World War I [1914-1918]. There occurred massive destruction to both nature and lives due to such a cruel deed of utilizing chemical and biological weapons in the armed conflict. Later on by 1925 there emerged a dire need to lay down some regulations and protocols in order to curb the use of both Chemical and Biological weapons. Thus in 1925 itself Geneva Protocols were laid down and thereby prohibited the use of any Chemical or Bio-logical weapon. But it didn’t put bar on the research and production of these agents too, which restricted the use of these weapons but countries kept on researching and producing these weapons. Between 1930’s and 1940’s Japan was indulged in the experiments of its bio-logical weapons. It kept on producing bio-weapons and tested them once the production got completed, thereby used one of its Biological Weapon over China. Furthermore got entrenched The Biological Weapons Convention by 1972 that prohibited the use, research, development and production of Biological Weapons. Still after establishing several conventions there took place outbreak of biological weapon agents numerous times, off which the most cataclysmic was the outbreak of “Anthrax” a biological weapon agent in Soviet Union. Till date Anthrax is the most deadly and pernicious biological agent used for the purpose of biological weapon. Recently there has come-up a virus before the whole of the world, as a challenge to humanity, nature and lives. The virus is being titled as “Novel Corona Virus” or “COVID-19”. This virus has spread its arms all over the world and has taken numerous peoples in it infectious ambit. The outbreak of this virus begun from Wuhan, place in China. The World Health Organization has even declared this as a Pandemic, moreover due to this the world economy has shown a prodigious debacle, and is at its least figure of the last three years. Now the issue of concern is whether the outbreak of COVID-19 can’t be due to a mishap while working over secret biological weapon project by China.
Is COVID-19 a Bio-Weapon?
There have emerged various theories regarding the COVID-19 including the statements of biological warfare analysts and some literary sketches also. Some of these consider it to be fictional occurrence that was predicted earlier itself by the literary authors, whereas some consider it to be an occurrence akin to the secret biological weapon project of China. Herein would be discussing some of the major theories as follows;
1) Wuhan Institute of Virology:
China has several biological labs and research centers of its, but at the same time has some secret labs too those work upon the development of biological weapons. In regard to same an Israeli biological Warfare analyst, has claimed that animal borne Corona Virus may have its origination from the Chinese labs, also made a statement that the Corona virus could be a result of China’s Covert Biological Weapons Program. Danny Shoham a former Israeli Military Intelligence officer has studied the Chinese Biological Warfare and thereby reported to The Washington Times that
“Certain Laboratories in the institute have probably been engaged, in terms of research and development, in Chinese (Biological Weapon), at least collaterally, yet not as a principle facility of the Chinese Bio-Warfare alignment.”
Thus there are for sure chances of it being a result of mishap at the Wuhan Institute of Virology, while working over a biological warfare project.
2) Literary records:
There has been a literary paragraph that has been trolling down the pages of every social media handle. It is a literary text written in the same concern that also discussed regarding the very same plot through which we are going.
The literary text is nothing but a narration of one mother that how his son who went for studying to Wuhan, got affected by a highly infectious virus i.e. Wuhan-400. It was also predicted in this literary text that this would be the most infectious viruses of all those came into scenario till now. Thus this literary context also shows resemblance with the current scenario, but obviously can’t aid is as to how and due to which reason the outbreak of COVID-19 has occurred.
3) Claims of American President, Sir Donald Trump and Mike Pompeo:
When the outbreak of COVID-19 was just on its emergence the US President Sir. Donald Trump claimed that it’s a result of mishap at the biological warfare project of China, especially from its Institute of Virology in Wuhan. Sir. Donald Trump and Pampoe explicated that China has been secretly engaged in the Bio-Warfare projects, and the outbreak of COVID-19 could be the biological agent of it bio-weapon.
4) Carnage of Chinese economic espionage:
Federal Bureau of Investigation (FBI) is the domestic intelligence and security service of the United States and its principle federal; law enforcement agency. Recently FBI has arrested a professor of Harvard University, US for him being lying on his participation in Chinese research program, a Chinese national working as scientific-researcher at Boston University for failing to be under J1 visa application and having connected with people’s liberation army and one more Chinese national who used to smuggle files of biological materials from US to China. The Federal Bureau of Investigation (FBI) contends the following in regard to arrest of everyone above, as follows:
(a) Charles, Professor Harvard University, US – FBI arrested Charles for making false statements in regard to his involvement in China’s plan and affiliation to Wuhan’s University of Technology. By investigation FBI found that Charles signed a contract with Chinese university for aiding with his research experience in their research program. For this Charles got paid $50,000/month and $10,050 as living expenses. Moreover got an amount more than $1.5 million for setting up a research lab in Chinese school, especially to research on Nano-technology.
(b) Mr.Yeh, Chinese National, Scientific Researcher, Boston University, US – FBI took Yeh, a Chinese national under their suspects when recently he lied upon his J1 visa application and thereby making false statements to Custom services there. He was working as scientific researcher there in Boston University, US. FBI found him lying and not maintaining J1 visa, involved in conspiracies and as an unregistered agent of People’s Republic of China. Yeh accessed military websites and numerous research documents, which were thereby sent by him to China.
(c) A Chinese National, working as researcher – He is a Chinese National sponsored by Harvard University, US and was involved in research activities. He used to smuggle files of biological material and other research materials stolen from labs of biological sciences. He before boarding to his flight was caught by Custom’s Officers with 21 Biological Materials files, to which earlier he made statement that he had no biological file with him.
The research lab set-up, research contracts, smuggling of files of biological material from US to China and existence of an unregistered agent of People’s Republic of China as a scientific researcher in Boston University of
US are not the matter of coincidence and it seems to be a well-planned long term campaign run by China, in order to affiliate all researchers and researches of US to itself and make its own gain realize. According to FBI Officials the major target of this campaign of China are the research universities and labs of US.
5) Speculations from Chinese Scientists:
The Chinese scientists believe that this virus i.e. COVID-19 could have evolved from the lab/ Facility not too far from the Wuhan’s market. They too expressed that COVID-19 could have been originated from WHCDC or Wuhan Institute of Virology (i.e. 280 meters far from Wuhan’s market). The Chinese scientists believe that this virus could have leaked at time when it was undergoing testing procedure. The Chinese scientists have also stated that COVID-19 outbreak could be the accidental result of biological weapons research. Above-all a renowned Chinese professor is missing after his condemning the President of China Xi Jinping, on his failure to control the spread of virus at early stage.
6) Suit filed at United States District Court, seeking relief of $20 trillion US dollar:
Dated 17th March, 2020 a suit has been filed by Lary Kalyman, a natural person and others, with People’s Republic of China, People’s Liberation Army and others as defendants. The crux of what the suit revolves around and what are the contentions made, is as follow:
(a) Factual matrix: China acceded, ratified and joined Biological weapons Conventions on 15th November, 1984, also did the same in case of “Geneva Weapons Convention, 17th June, 1925”. COVID-19 was actually developed by China under its secret Bio-Weapon Program, for catastrophic and effective effects on its rival/ enemy countries. Many reputed peoples, organizations and experts have declared that COVID-19 is the result of an accident at Chinese Biological Weapons Facility. Dr. Li Wenaling of Wuhan violated the Chinese censorship and alarmed the outside world about the virus. Thereafter he was summoned, reprimanded and government there silenced him. Thereby on 6th February, 2020 not coincidently he died of the virus he was fighting against. Studies of Princenton University stated that COVID-19 stays alive in air for 3 hours and on inanimate substance for about 3 days.
(b) Cause of Action: The causes behind this action are enlisted in crux as follows:-
(c) Reliefs Claimed: The following are the reliefs claimed by the plaintiffs;
This was all about the suit initiated at United States District Court. There are for sure some high chances that as and when the trial begins or proceeds further some new knots or un-resolved degrees over this issue would get sorted.
These were some classified theories running around the outbreak of COVID-19. But there has come up no certain evidence or proof that establishes China’s Bio-logical Warfare intents behind the same. Rather after this an inclusion could be made to the international laws that there should be established ban on virological research’s and development of bio-warfare weapons on secret terms also. For this a committee could be set-up that could be given discrete jurisdiction to seizure and search of any lab or biological institutes in case have a black and white proof of development of Biological warfare weapon. The mystery of actual culprit behind such an outbreak and the theories behind it would also get sorted with advent of time, but the major concern of now should be to develop vaccine of this virus as early as possible. The whole of the international network and linkage has broken, and the economy of International markets is at its lowest figures of the last three years. Strict initiatives should be taken by authorities of every country to prevent the spread of the virus ahead. Economy does matter only when the economy raisers are safe and sound.
Himanshu Raj, Advocate
(Author is a lawyer in Punjab and Haryana High Court & has also been awarded “National Law Day Award by The President of India”)
The President of India”)
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